Himachal Pradesh High Court
Shri Parma Nand vs Shri Dorje Ram & Others on 16 July, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos. 124, 125 of 2001 and RFA .
No. 179 of 2002 Date of decision: 16.7.2015
1. RSA No. 124 of 2001 Shri Parma Nand ...Appellant Versus Shri Dorje Ram & others ...Respondents
2. RSA No. 125 of 2001 Shri Parma Nand ...Appellant Versus Shri Dorje Ram & others ...Respondents
3. R.F.A. No. 179 of 2002 Shri Abhey Singh & others ...Appellants Versus Shri Gurdayal & others ...Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No For the Appellants: Mr. Bhupinder Gupta, Senior Advocate, with Mr.Neeraj Gupta and Mr.P.C. Sharma, Advocates.
For the Respondents: Mr.K.D. Sood, Senior Advocate with Mr.Rajnish K. Lall, Advocate for respondents in RSA Nos. 124 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 2 and 125 of 2001 and for respondents No. 1 to 4 in RFA No. 179 of 2002.
.
Mr. Bhupinder Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate for respondents No. 5 and 6 in RFA No. 179 of 2002.
Tarlok Singh Chauhan J. (Oral) The appellant is the plaintiff in both the appeals, who had filed a suit for declaration that he was owner in possession of the suit land comprised in present Khasra No. 296 (whose old Khasra No. was 945/1) measuring 8 bighas 10 biswas (0-61-26 hectares) located in up-mohal Tam, Mauza Ropa, Tehsil Pooh, District Kinnaur, H.P. with consequential relief of permanent prohibitory injunction restraining the respondents from collecting the Chilgoza crop from the trees standing over the suit land and also for restraining the respondents from collecting any other produce like grass etc. from the suit land and he further prayed for restraining the respondents from interfering in the possession of appellant over the suit land in future in any manner and also for recovery of damages (compensation) amounting to `15,000/- of Chilgoza crop taken away by the respondents, which was otherwise belonging to the appellant, from the suit land in an unauthorized manner.
::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 32. The defendants who are residents of village Ropa contested the suit by filing written statement and it was averred .
that they never collected the Chilgoza crop from the present Khasra No. 296 and the suit was not maintainable against the respondents without impleading the other co-villagers of village Ropa and a number of other objections were raised.
The learned trial Court vide orders dated 29.11.1997 and 8.11.1996 framed the following issues in both the suits:-
rCivil Suit No. 61-1 of 1996 "1. Whether the plaintiff is owner in possession over the suit land and defendants are trying to interfere in the possession of plaintiff over the suit land, and are trying to collect the Chilgoza from the suit land, as alleged? OPP
2. Whether the defendants had forcibly taken the crop of Chilgoza of value Rs.15,000/- from the possession of the suit land, as alleged? OPP
3. Whether the plaintiff has got no locus-standi to file this suit, as alleged? OPD
4. Whether the suit of the plaintiff is bad for non-joinder of necessary party, as alleged? OPD
5. Whether the plaintiff is estopped from filing this suit on account of his act and conduct, as alleged?
OPD
6. Whether the suit land is still 'Ghasni' since the time of sanction of it's Nautor in favour of the plaintiff and there are no trees of Chilgoza over the suit land, as alleged? OPD
7. Whether the plaintiff does not have any cause of action to file this suit, as alleged? OPD
8. Whether this suit has not been properly valued for the purpose of court fee and jurisdiction, as alleged? OPD ::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 4
9. Relief."
Civil Suit No. 28-1 of 1996 .
"1. Whether there are Chilgoza trees on the suit land and the Chilgoza crop has been collected by the plaintiff from the time of his father, as alleged?
OPP
2. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP
3. Whether the plaintiff is entitled to recover Rs.11,250/- from defendants, the price of Chilgoza crop, as alleged, removed by them, as alleged?
OPP
4. Whether the plaintiff has no locus standi to file this suit?
OPD
5. Whether this suit is bad for non-joinder of necessary parties?
OPD
6. Whether the suit is not properly valied for the purpose of court fee and jurisdiction? OPD
7. Relief."
3. Both the suits were decreed, however, in appeals the said decision was reversed on the ground that even though the appellant was the owner of the disputed land, but he had failed to establish that there were Chilgoza trees standing over the disputed land.
4. This Court admitted the appeals on the following substantial questions of law:-
RSA No. 124 of 2001"1. Whether the Lower Appellate Court has wrongly relied upon the statement of DW-4 who allegedly demarcated the suit ::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 5 land without legal proof of the alleged demarcation report, particularly when no original record was produced, was not the alleged demarcation report of DW-4 inadmissible in .
evidence and also incorrect where the property in disputed was shown to be situated in a different revenue estate?"RSA No. 125 of 2001
"1. Whether the Lower Appellate Court has wrongly relied upon the statement of DW-2 who allegedly demarcated the suit land without legal proof of the alleged demarcation report, exhibit DW-2/A particularly when no original record was produced, was not the alleged demarcation report, exhibit DW-2/A inadmissible in evidence and also incorrect where the property in dispute was shown to be situated in a different revenue estate?3.
Whether the Lower Appellate Court has exceeded its jurisdiction in condoning the delay in filing the appeal which was barred by about 3 months without there being proper explanation for the delay? Whether the orders condoning the delay is bad in law as the same is the result of misreading the pleadings, misappreciating the evidence of the applicants, and misapplying the law?"
5. At this stage it may be noticed that when these appeals were pending adjudication before the learned lower Appellate Court, the Bashindgan of Village Ropa including the present respondents filed a separate suit in representative capacity for permanent injunction against the defendants (including the present appellant), alleging therein that as per the record of rights all the proprietors of revenue estate Ropa had collective right to collect Chilgoza fruit from Khasra No. 1, Khata Khatauni No. 1/1, ::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 6 C.No. 205, measuring 166-34-96 hectares, situate in revenue estate Ropa 1, Tehsil Pooh, District Kinnaur. In this suit two facts have .
been specially admitted
(i) the State is the owner of land involved in C.No. 205 and
(ii) that the defendants, including the appellant herein, is the owner of Khasra Nos. 296, 470 and 123 situate in Up Mohal Thropa and Up Mohal Ropa respectively. However, it had been disputed that there were Chilgoza fruit trees standing over Khasra Nos. 296, 470 and 13. r
6. In view of the factual background, when the respondents themselves have filed a separate suit being Civil Suit No. 9 of 1999, against which Sh. Abhey Singh and others have filed RFA No. 179 of 2002, wherein they have acknowledged in writing by specifically pleading that respondent, Parma Nand is the owner in possession of Khasra No. 296, these substantial questions of law are answered in favour of the appellant, Parma Nand by declaring him to be the owner in possession of Khasra No. 296 measuring 8 Bighas 10 Biswas (0-61-26 hectares) located in Up-Mohal Tam, Mauza Ropa, Tehsil Pooh, District Kinnaur, H.P.
7. In so far as the question as to whether there are Chilgoza trees standing over this land, the same is left open to be determined in Civil Suit No. 9 of 1999, out of which RFA No. 179 of ::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 7 2002 has been preferred, as this question is directly and substantially involved in the said appeal. It is, therefore, made .
clear that any findings regarding the Chilgoza trees and the land over which the same are standing will not operate as resjudicata in RFA No. 179 of 2002.
8. In view of above discussion, both these appeals i.e. RSA No. 124 and 125 of 2001 are partly allowed by declaring the appellant to be the owner in possession of Khasra No. 296 (old Khasra No. was 945/1) measuring 8 bighas 10 biswas (0-61-26 hectares) located in up-mohal Tam, Mauza Ropa, Tehsil Pooh, District Kinnaur, H.P. and the respondents are restrained from collecting the Chilgoza crop (if any) from the trees standing over the suit land or any other produce like grass etc. The parties are left to bear their costs.
RFA No. 179 of 20029. The plaintiffs have filed this suit in representative capacity for permanent prohibitory injunction against the defendants alleging therein that as per the records of right, all the proprietors of revenue estate Ropa have collective rights to collect Chilgoza fruits from Khasra No. 1, Khata Khatauni No. 1/1, C.No. 205, measuring 166-34-96 hectares situate in revenue estate Ropa 1, Tehsil Phoo, District Kinnaur, H.P. ::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 8
10. In written statement filed to the suit, a specific objection regarding the State being a necessary party was raised, as .
it was not disputed among the parties that it is ultimately the State who is the owner of the land in dispute.
11. The learned trial Court framed issue No. 2, which reads thus:-
"Whether the suit is bad for non-joinder? OPD"
12. This issue was answered in the following manner:-
"Issue No. 2.
16. The learned Counsel for the defendants had argued that the State of H.P. was a necessary party. C.No. 205 was under
the ownership of the State of H.P. I find no merit in the defendant of the defendants. The State of H.P. had not disputed the customary rights of all proprietors of revenue estate Ropa over C.No. 205. The plaintiffs had not claimed ownership of C.No.
205. It was nowhere the defence of the defendants that the State of H.P. had been collecting Chilgoza fruit from C.No. 205 to the exclusion of the rights holders. The plaintiffs were masters of the litigation and could not be compelled to fight against persons against whom they claimed no relief. The State of H.P., in view of peculiar facts and circumstances of the case, could not be said to be a necessary party. Full and final adjudication of the dispute between the parties could be adjudicated upon in the absence of the State. As such issue No. 2 is decided against the defendants."
13. I am not at all satisfied with the aforesaid reasoning of learned trial Court. I fail to understand as to how and on what ::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 9 basis the learned Court made the following far reaching observations that "The State of H.P. had not disputed the .
customary rights of all proprietors of revenue estate Ropa over C.No. 205." If at all, these findings were based upon the statements of witnesses of the State i.e. PW-1 Amar Singh, Tehsildar or PW-4, Ram Lachh, Field Kanungo, then the learned trial Court only needs to be reminded that the statements of officials, that too, of the level of Tehsildar cannot bind and will not be binding on the State.
14. I further fail to understand how the suit of the present kind could be held to be maintainable in absence of the true owner. At this stage, it may be noticed that this Court was seized of a similar issue in RFA No. 450 of 2001 decided on 30.5.2014, in case titled as Jumla Jamindaran, Village Telangi Vs. Jumla Jamindaran, Village Pangi and this Court held as follows:-
"4. Admittedly, the State of Himachal Pradesh is the owner of the land and has not been arrayed as a party to the present suit despite objection to this effect.
The learned trial court framed a issue to this effect vide issue No. 4, which reads as under:-
"Whether the suit is bad for non-joinder of State? OPD"
For answering this issue against the defendants, the learned trial court has recorded the following reasons:-
::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 10"The learned counsel for the defendants had argued that the State of H.P. was a necessary party. The suit land was owned by the .
State of H.P. The Settlement Collector vide order, dated 2.9.1983, had rejected the customary rights of the plaintiffs over the suit land. I find no merit in the defence of the defendants. The State of H.P. had not denied the customary rights of the plaintiffs over the suit land. The Settlement Collector, in exercise of his statutory duty of preparation of record of rights, had erroneously proceeded to reject the customary rights of the plaintiffs. The plaintiffs had not claimed ownership of the suit land. It was nowhere the defence of the defendants that the State r of H.P. had been collecting Chilgoza fruit from the suit land to the exclusion of the right holders. The plaintiffs were masters of the litigation and could not be compelled to fight against persons against whom they claimed no relief. The State of H.P. in view of peculiar facts and circumstances of the case, could not be said to be a necessary party. Full and final adjudication of the dispute between the parties could be resolved in the absence of the State. As such, the suit did not suffer from the vice of non-
joinder. Issue No. 4 is decided against the defendants."
5. I am surprised "as to where from the learned trial court came to the conclusion that State of Himachal Pradesh has not denied the customary rights of the plaintiffs over the suit land" particularly when admittedly the State was not a party before the learned trial court. Once the State of Himachal Pradesh is admitted to be the owner of the suit land, it is difficult to comprehend how it would not be a ::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 11 necessary party. In a lis dealing with the property of the State, there can be no dispute that the State is a necessary party.
.
6. Though Sh. Suneet Goel, learned counsel for the respondents would contend that no relief has been claimed against the State, therefore, the State cannot be termed to be necessary or proper party in the present suit. I cannot persuade myself to agree with the contention raised by the learned counsel for the respondents, merely because the respondents have not claimed any relief against the State is not a determinative factor to decide as to whether the presence of party is necessary for the complete and effective adjudication of the dispute or not. In case the court comes to the conclusion that presence of a party is necessary for complete and final decision on the question involved in the suit, then such a party is required to be joined as party. The Hon'ble Supreme Court in Anil Kumar Singh vs. Shivnath Mishra alias Gadasa Guru (1995) 3 SCC 147, has held as under:-
""6. Order 1, Rule 10(2) postulates that:
"10(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such term as May appeared to the Court to be just, order that the name of any party improperly joined whether as plaintiff or defendant, be struck out, and that the name of any person who or to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added".
10. A person may be added as a party defendant to the suit though no relief may be claimed against him/her provided his/her presence is necessary for a complete and final decision on the question involved in the suit. Such a ::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 12 person is only a proper party as distinguished from a necessary party. In Razia Begum v. Sahebzadi Anwar Begum & Ors. , 1959 SCR 1111, in a suit instituted for a .
declaration of legal status as a married wife, the question arose whether another person claiming to be the third wife and sons through her are necessary and proper party, who sought to come on record under Order 1 Rule 10(2). This Court held that in a suit for declaration, as regards status or legal character under s.42 of the Specific Relief Act, the rule that in order that a person may be added as a party must have a present or direct interest in the subject matter of the suit, is not wholly applicable, and the rule may be relaxed in a suitable case where the court is of the opinion that by adding that party it would be in a better position to effectually and completely to adjudicate upon the controversy. In such suits the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon clear proof, apart from the admission. It was therefore, held that a declaratory judgment since binds not only the parties actually before the court but also the persons claiming through them respectively within the meaning of s.43 of the Specific Relief Act, they are proper parties. The petitioner is not claiming this legal status nor through the respondent. In Lala Durga Prasad and Anr. v. Lala Deep Chand & Ors., 1954 SCR 360, in a suit for specific performance the subsequent purchaser was held to be a necessary party. In this case the petitioner is merely seeking the specific performance of the agreement of sale. Section 15 of the Specific Relief Act, 1963, provides that except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by "any party thereto"; and under s. 16 the Court has been given ::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 13 discretion and personal bars to relief. Therefore, based on the fact situation, the court would mould the relief The respondent is neither a necessary nor a proper party to .
adjudicate upon the dispute arising in the suit so as to render an effective and complete adjudication of the dispute involved in this suit."
7. This position of law was reiterated in Aliji Momonji & Co. vs. Lalji Mavji and others (1996) 5 SCC 379, wherein the Hon'ble Supreme Court has held as follows:
"5. The controversy is no longer res integra. It is settled law by catena of decisions of this Court that where the presence of the respondent is necessary for complete and effectual adjudication of the disputes, though no relief is sought, he is a proper party. Necessary party is one without whose presence no effective and complete adjudication of the dispute could be made and no relief granted. The question is: whether the landlord is a necessary or proper party to the suit for perpetual injunction against the Municipal Corporation for demolition of demised building? The landlord has a direct and substantial interest in the demised building before the demolition of which notice under Section 351 was issued. In the event of its demolition, his rights would materially be affected. His right, title and interest in the property demised to the tenant or licences would be in jeopardy. It may be that the construction which is sought to be demolished by the Municipal Corporation was made with or without the consent off the landlord or the lessor. But the demolition would undoubtedly materially affect the right, title and interest in the property of the landlord. Under those circumstances, the landlord necessarily is a proper party, though the relief is sought for against the Municipal Corporation for ::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 14 perpetual injunction restraining the Municipal Corporation from demolition of the building. Under those circumstances, the question of the commercial interest .
would not arise. In Ramesh Hirachand Kundanmal's case (1992) 2 SCC 524, this Court had pointed out in para 18 of the judgment that the notice did not relate to the structure but to two chattels. Original lessee from the landlord had no direct interest in that property. Under these circumstances, it was held that the second respondent has no direct interest in the subject matter of the litigation and the addition thereof would result in causing serious prejudice to the appellant and the substitution or the addition of a new cause of action would only widen the issue which was required to be adjudicated and settled, It is true, as pointed out by Shri Nariman that in para 14, this Court in that case had pointed out that what makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is not necessary for the purpose of this case to go into the wider question whether witness can be a proper and necessary party when the witness has a commercial interest. This Court in New Redbank Tea Co. Pvt. Ltd. vs. Kumkum Mittal & Ors.[(1994) 1 SCC 402] has pointed out that respondent ::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 15 11 who filed a suit for specific performance in the High Court was sought to come on record in the suit in which he had no direct interest in the pending matter. Under .
those circumstances, this Court had held that respondent 11 was neither necessary nor proper party in the lease-hold interest involved in the suit. In Union of India & Anr. vs. District Judge, Udhampur & Ors.[(1994) 4 SCC 737] the Union of India who ultimately had to bear the burden of payment of the compensation was held to be a necessary party under Order 1 Rule 10, CPC for determination of the compensation in respect of the acquired land. In Bihar State Electricity Board vs. State of Bihar & Ors. [(1994) Supp. 3 SCC 743] the same question was also reiterated and it was held that the r Electricity Board was a person interested and also a necessary party. In Anil Kr. Singh vs. Shivnath Mishra [(1995) 3 SCC 147] similar question was answered holding that the respondent was a necessary party.
6. In view of the finding that the in the event of building being demolished, right, title and interest of the landlord would directly be affected, the landlord would be a proper party, though no relief has been sought for against the landlord. The High Court, therefore, was right in refusing to interfere with the order passed by the trial Court impleading the landlords."
Therefore, viewed from any angle, the presence of the State is necessary for the complete and final adjudication on the question involved in the suit particularly when both the parties to the lis admit the ownership of the State and they yet want their rights to be determined in absence of the true owner. This is not permissible in law. The presence of the State before the court is otherwise necessary in order to enable the court factually and completely adjudicate upon and settle all the questions involved in the suit."
::: Downloaded on - 15/04/2017 18:36:11 :::HCHP 1615. In view of aforesaid discussion, I have no other option, but to set aside the judgment and decree passed by the .
learned trial Court, which are accordingly set aside and the case is remanded to the learned trial Court for decision afresh. The State of Himachal Pradesh shall stand arrayed as a party defendant. The trial Court after affording an opportunity to the State to file its written statement shall consider the desirability and requirement of framing additional issue(s), if any and thereafter afford an opportunity to the State to lead its evidence.
Since the suit was instituted in the year 1999, the learned trial Court is requested to decide this case expeditiously and in no event beyond 31st March, 2016.
The parties through their learned counsel are directed to appear before the learned trial Court on 31.7.2015. The Registry to ensure that records of the case are sent back so as to reach the Court well before the date fixed.
(Tarlok Singh Chauhan), Judge.
16th July, 2015 (KRS) ::: Downloaded on - 15/04/2017 18:36:11 :::HCHP